CMB v Attorney General for New South Wales

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: French CJ,Gageler J.,Kiefel,Bell,Keane JJ
• Judgment Date: 11 March 2015
• Neutral Citation: [2015] HCA 9
• Docket Number: S257/2014
• Date: 11 March 2015

[2015] HCA 9

HIGH COURT OF AUSTRALIA

French CJ, Kiefel, Bell, Gageler and Keane JJ

S257/2014

CMB

Appellant

and

Attorney General for New South Wales

Respondent

Representation

C T Loukas SC and G A Bashir SC with B C Dean for the appellant (instructed by Legal Aid NSW)

J V Agius SC with B K Baker for the respondent (instructed by Crown Solicitor (NSW))

Criminal Appeal Act 1912 (NSW), s 5D.

Pre-Trial Diversion of Offenders Act 1985 (NSW).

Crimes (Sentencing Procedure) Act 1999 (NSW), s 23.

CMB v Attorney General for New South Wales

Criminal law — Sentencing — Sentence increased on prosecution appeal under s 5D of Criminal Appeal Act 1912 (NSW) — Appellant charged with sexual assault of daughter — Director of Public Prosecutions referred appellant for assessment for pre-trial diversion program — During assessment appellant disclosed further offences committed against daughter — First set of offences dealt with under program — Appellant charged with further offences and sentenced to good behaviour bonds with condition appellant complete program — Attorney General filed notice of appeal — Court of Criminal Appeal allowed appeal and re-sentenced appellant to five years and six months' imprisonment — Whether Court of Criminal Appeal erred in not exercising residual discretion to decline to interfere — Whether Court of Criminal Appeal erred in placing onus upon appellant with regard to exercise of residual discretion to dismiss appeal and limiting purpose of Crown appeals — Whether Court of Criminal Appeal erred in application of s 23 of Crimes (Sentencing Procedure) Act 1999 (NSW) and principles regarding voluntary disclosure of otherwise unknown guilt.

Words and phrases — ‘discretion not to intervene’, ‘leniency’, ‘manifestly inadequate’, ‘onus’, ‘proper sentence’, ‘residual discretion’, ‘restraint’, ‘unreasonably disproportionate’.

ORDER

• 1. Appeal allowed.

• 2. Set aside the orders of the Court of Criminal Appeal of the Supreme Court of New South Wales made on 19 March 2014.

• 3. Remit the matter to the Court of Criminal Appeal of the Supreme Court of New South Wales for determination.

1 French CJ and Gageler J. The office of the Director of Public Prosecutions (‘the DPP’) was established by statute in New South Wales in 1986 1. The DPP is responsible to the Attorney General for the exercise of statutory functions 2 which include the institution and conduct, on behalf of the Crown, of prosecutions for indictable offences, relevantly in the District Court 3. The statutory functions for which the DPP is responsible to the Attorney General also include the institution and conduct, on behalf of the Crown, of an appeal, relevantly in the Court of Criminal Appeal, in respect of any such prosecution 4.

2 Since 1986, s 5D(1) of the Criminal Appeal Act 1912 (NSW) has provided:

‘The Attorney-General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any sentence pronounced by the court of trial in any proceedings to which the Crown was a party and the Court of Criminal Appeal may in its discretion vary the sentence and impose such sentence as to the said court may seem proper.’

3 The present appeal to this Court, by ‘CMB’, is from a decision given by the Court of Criminal Appeal on an appeal by the Attorney General against a sentence pronounced by the District Court for offences prosecuted by the DPP. CMB had confessed to those offences, and pleaded guilty to them. The District Court, at the request of CMB and of the DPP, imposed a non-custodial sentence. The DPP announced that he would not appeal. The Attorney General appealed some weeks later.

4 The Court of Criminal Appeal found the District Court to have proceeded on a legal misunderstanding in sentencing CMB. It found the non-custodial sentence pronounced by the District Court to have been manifestly inadequate. It went on to formulate and explain the custodial sentence which to it seemed proper.

5 As the final step in its reasoning, the Court of Criminal Appeal turned to the discretion conferred by s 5D of the Criminal Appeal Act. It stated that it took the law to be that the respondent to an appeal under that section had the onus of establishing that the discretion should be exercised in his or her favour. It stated

its conclusion in terms which reflected that onus. It said that it was ultimately not satisfied that there was any reason why it should exercise the discretion not to intervene. It then made orders having the effect of varying the sentence pronounced by the District Court by imposing the custodial sentence which to it seemed proper.

6 The Court of Criminal Appeal was wrong in the view it took of the law in that final step in its reasoning. It is the appellant in an appeal under s 5D of the Criminal Appeal Act who throughout has the burden of establishing that the discretion conferred by that section should be exercised to vary the sentence imposed by the court of trial.

7 The Court of Criminal Appeal's erroneous view of the discretion was material to its decision. In light of the peculiarity of the background circumstances and of the conduct of the representative of the DPP in the District Court, it cannot be said that it was not open to the Court of Criminal Appeal in the Attorney General's appeal to it to have exercised the discretion against imposing the custodial sentence.

8 The consequence is that CMB's appeal to this Court must be allowed. The decision of the Court of Criminal Appeal must be set aside, and the Attorney General's appeal against the sentence pronounced by the District Court must be remitted to the Court of Criminal Appeal for reconsideration.

9 To explain that result, it is necessary first to explain the background to the prosecution which the DPP brought against CMB in the District Court.

Background

10 The background to the prosecution lay in curial and non-curial procedures for which provision was made in the Pre-Trial Diversion of Offenders Act 1985 (NSW). That Act provided for the protection of children who had been victims of sexual assault by a person who is a parent (or the spouse or de-facto partner of a parent) through the establishment and operation of a program for the treatment of such a person, which was administered by the Department of Health 5. The program was known in practice as the Cedar Cottage Program (‘the Program’).

11 The Pre-Trial Diversion of Offenders Act allowed the DPP to refer a person charged with a sexual assault offence committed on a child of the person or person's spouse for assessment in relation to the person's suitability to participate in the Program 6. If the Director of the Program assessed the person to

be suitable, and if the person pleaded guilty to the charge, the person would be invited to give an undertaking to participate in the Program for a period of up to two years 7. On that undertaking being given, the person would be convicted, but would not be sentenced or otherwise dealt with in relation to the offence provided the person complied with the undertaking and other statutory requirements 8.

12 The procedures for referral of a person and for assessment in relation to that person's suitability to enter into the Program depended on the existence of a regulation made under the Pre-Trial Diversion of Offenders Act9. A regulation which was made in 2005 remained in existence until 31 August 2012 10. It was repealed on 1 September 2012 11. There is no dispute that the effect of that repeal was that the procedures for which the Act provided remained available to a person in relation to charges laid before 1 September 2012 12, but that those procedures were not available to a person in relation to charges laid on or after 1 September 2012.

13 CMB sexually assaulted his daughter on numerous occasions between 2004 and 2006. She was then aged between 10 and 12. Some but not all of the assaults came to light in 2011 when his daughter reported them to police. She was then aged 17.

14 As a result of his daughter's report, CMB was interviewed by police on 27 October 2011. He was on that day charged with 22 sexual offences committed against his daughter between 2004 and 2006. The DPP later reduced those charges to five counts of aggravated sexual assault, two counts of attempted aggravated indecent assault, and three counts of aggravated indecent assault (‘the first set of charges’).

15 The DPP referred CMB for assessment in relation to his suitability to participate in the Program in April 2012. In October 2012, in the course of being assessed for participation in the Program, CMB disclosed to Program staff that he

had committed additional sexual assaults against his daughter. Neither he nor she had previously referred to those additional sexual assaults. Like other persons being assessed to participate in the Program, CMB was encouraged by Program staff to make additional disclosures as a sign of a positive commitment to change and was encouraged to make them before entering into the Program so as to avoid later difficulties. That is what he did.

16 Through meeting with Program staff, it became apparent to CMB that the only adequate way for him to show remorse was to disclose the additional sexual assaults to police. At his request, CMB was then interviewed again by police on 2 November 2012. He was cautioned at the beginning of that interview. He explained to police that he was making further disclosures as part of the assessment process for the Program. As a result of those further disclosures, he was on that day charged with nine further sexual offences committed against his daughter in 2005 and 2006. The DPP later reduced those charges to four counts of aggravated sexual assault and one count of aggravated indecent assault (‘the second set of charges’).

17 On 23 November 2012, CMB...